Divorces in New York follow many of the same procedures as other lawsuits. The plaintiff spouse filing must provide the defendant spouse with notice consisting of a summons and either a copy of the divorce complaint or a notice describing the nature of the lawsuit. Delivering these documents to a defendant is commonly known as service of process. Failing to do this properly can delay a case or even result in its dismissal. Once the defendant has been served, they must file an answer or else risk a default judgment on some or all of the plaintiff’s claims. An interesting question arises when a plaintiff spouse serves a summons with notice—meaning without a copy of the divorce complaint—and the defendant spouse defaults. Does a defaulting spouse have a right to service of the actual complaint? The scant amount of caselaw on the topic, suggests that notice, without the complaint, is sufficient for a divorce but not for issues like custody and support.
New York law requires a plaintiff to file a summons, along with either the complaint or a notice that describes the nature of the complaint. If a plaintiff chooses the latter, known as “summons with notice,” they must file the actual complaint at a later time. The exact deadline depends on how the defendant responds to the lawsuit.
The New York Domestic Relations Law (DRL) and Civil Practice Law & Rules (CPLR) govern service of process in divorce cases. Section 232(a) of the DRL requires a summons to clearly state that it is for an “action for divorce.” Rule 320 of the CPLR states that the defendant has 20 days to respond if they were personally served, or 30 days if they were served by any other means. The plaintiff can seek a default judgment under Rule 3215 and DRL § 211 if the defendant does not file a response with the court clerk.
Here is where the question about summons with notice and default arises. A plaintiff who serves a defendant with a summons with notice must file and serve the actual complaint within 20 days of either (1) receipt of a written demand by the defendant under Rule 3012(b), or (2) service of the defendant’s response. Both scenarios assume that the defendant files an answer or other response with the court. Rule 3012 is silent on the question of when—or whether—a plaintiff must serve a copy of the complaint when the defendant defaults. Additionally, DRL § 232(a) allows a default judgment in a divorce case when the defendant has only been served with summons and notice.
A 1971 decision from the Monroe County Supreme Court, Goulet v. Goulet, offers some guidance but also raises new questions. The court granted a default divorce judgment after service of summons with notice. This suggests that serving the defendant with the complaint is not required. However, the court hesitated in granting a default judgment on the issues of child custody, child support, and spousal maintenance.
Since the summons and notice only stated that the case was an “action for divorce,” the court found that the defendant did not have adequate notice of the other issues. The court did not address how the plaintiff could remedy this problem, but service of the complaint on the defendant seems like a reasonable solution.
To learn more about the divorce process in Nassau County, or to discuss other New York divorce issues, contact me, Mr. Darren M. Shapiro, at your earliest convenience. You may contact us online or at 516-333-6555 to schedule a free and confidential half-hour consultation.
More Blog Posts:
When Can Someone Request Maintenance or Modify Alimony After a Divorce in New York? Long Island Family Law and Mediation Blog, February 3, 2017
How Do You Serve Process in Family Court Child Custody Cases? Long Island Family Law and Mediation Blog, June 25, 2016
Service by Facebook in a New York Divorce? Long Island Family Law and Mediation Blog, April 16, 2015